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Security, the Greatest Threat to Free Expression?

Regardless of how laws are written, they will be interpreted and applied by human beings -- flawed humans with their own prejudices. It is exactly this that scares me the most.
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Like it or not, today we are all, in one way or another, engaged in a battle between perceived security and freedom of expression. And far too many make the mistake to look at security and human rights as conflicting issues. They are not. Human rights are an essential component of security and vice versa.

Today, security has become one of the biggest threats to freedom of expression and it appears that the future of free expression could be dictated in large part by security concerns related to terrorist activity.

In fact, we have already seen a clear shift in security-driven regulation having a great effect our precious liberties, including the right to speak freely. In the name of fighting terrorism we appear to accept attacks on our fundamental rights. These attacks are taking place in nearly every country that my office monitors.

Just consider the anti-terror law in Turkey, in effect since 1991. This law is now being used to round up alleged terrorists and others, including those for whom it is my job to lobby for -members of the media.

In Turkey today, there are more than 30 journalists in jail; prosecuted and convicted under a law designed to fight terrorism, but that almost all independent media organizations scream is being misused to jail critical media. Under this law, merely reporting on controversial topics could land a journalist in court. Dissenting voices, although still present and persisting, are under duress.

In the Russian Federation, the Duma adopted changes in the Code of Administrative Offenses last year. These changes substantially increase penalties for media found to be producing or publishing materials containing public calls for or publicly justifying extremist or terrorist activities, although terrorist and extremist activities are never specifically defined.

In Canada, the bill C-51 intended to fight terrorism, is still under consideration in parliament. The last draft criminalizes a number of vague offenses including advocating and promoting terrorism or recklessness in carrying out your activities could lead to terrorist acts being committed. I can think of nothing as confusing as such vaguely worded legislation, which has the potential to determine whether anyone who simply disagrees with government policy is found to be criminally liable for someone else's potential behavior.

Following the terrorist attacks on the French satirical magazine Charlie Hebdo and the horrendous attacks in in Paris last November, the French Parliament declared a state of emergency giving the authorities very broad-reaching powers, including blocking of information and surveillance. In January, the state of emergency was extended even though it was heavily criticized its restrictions on freedom of expression and the right to privacy.

In Spain, criminal provisions approved in 2015 regarding access to or dissemination of extremist content pose a severe threat to freedom of expression.

In the UK, the Regulation of Investigatory Powers Act and Terroism Act of 2000, have been misused to cull journalists' notes and call records in order to identify confidential and off-the-record sources; sources that constitute the backbone of public service investigative reporting.

Forcing journalists to reveal their sources is unfortunately nothing new. But nowadays it is being done using tools designed to fight terror. And with new anti-terrorist laws increasingly criminalizing almost any disclosure of classified information (including non-sensitive documents on issues of public interest), reporting on terrorism itself has become a dangerous activity.

This makes it difficult for journalists to reveal stories that might be in the public interest in the area of national security, intelligence and law enforcement, where information is sensitive, but not necessarily classified. Government officials and other whistle-blowers refrain from sharing information with journalists because of the risk that they could be tracked down and revealed as confidential sources.

Regardless of how laws are written, they will be interpreted and applied by human beings -- flawed humans with their own prejudices. It is exactly this that scares me the most: that even well-written laws will be interpreted by law enforcement officials, prosecutors and judges predisposed to seeing security and freedom as a zero-sum game, with security outweighing all other concerns, to the absolute detriment of our basic freedoms.

All measures aiming to increase security must be accompanied by meaningful counterweights protecting human rights. In short, we must have effective and transparent mechanisms for civilian oversight of new security measures.

The core issue here is how to properly protect freedom of the media and freedom of expression while fighting terrorism. Freedom of expression and a free media play important roles in fostering meaningful debate on security issues and can help us to effectively address new challenges. By pitting human rights concerns and security issues against each other we run the risk that both will be conquered. We may find ourselves with no security and no rights.

Dunja Mijatović is the OSCE Representative on Freedom of the Media

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